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School

University of Toronto St. George

Department

Woodsworth College Courses

Course

WDW101Y1

Professor

David Davies

Semester

Fall

Description

WDW225 19/09/2013 3:09:00 PM
Options for regulating conduct
 1. Nothing
 2. Informal social control – community /peer pressure
o ways in which we pressure eachother informally in order to
curb behaviours we don‟t like
 3. Formal social control
o government stepping in to try to regulate behaviour
 regulation (non criminal offences, licencing, regulatory
framework etc.)
 incentive structures (i.e. Tax incentives- metropass)
 medical regulation
 4. Criminalize conduct
Uses of Criminal Law
 Must distinguish CRIME from other prohibited conduct or regulated
conduct which carries potential for penalties (including jail)
o Parking infraction (Highway Traffic Act)
o Owning an illegal pit bull in Ontario
o Urinating in public
o Operating a hot dog stand without licence
o Owning more than 6 ferrets in Toronto
o Practicing midwifery without authorization
o Observing the seal hunt without a licence.
Uses of Criminal Law
 1. Regulate morality
o denounce immoral conduct
o reflect societal values
 2. Define the limits of acceptable behaviour
o forms the basis of the “social contract”
o boundaries change over time
o limited consensus of what should be a crime
 possession of weed, abortion, homosexuality,
prostitution
o seems to be a reflection of societal values
 3. Justify imprisonment/deprivation of liberty o criminal law is the only way in which our society justifies
LONG term offences
 4. Protect society from harm
o protecting ourselves against that conduct
Players in the Canadian Criminal Justice System
 1. Parliament (Federal)
o enact legislation
 2. Police
o investigate crime
 3. Crown attorney
o prosecute crime
 4. Defence council
o defend those accused of crime
 5. Court / judge
o interpret legislation, strike down unconstitutional law, apply
legislation, determine guilt / innocence, impose sentence,
decide appeals
o in Canada either party that loses a criminal trail is entitled to
appeal
Levels of Courts in Ontario
 Supreme Court of Canada (decisions binding of all judges in
Canada)
 Courts of Appeal for Ontario 9hears appeals in indictable cases;
decisions binding on all trial judges in Ontario)
 Superior Court of Justice (court in Ontario for jury trials)
 Ontario Court of Justice (provincial court; entry point for all criminal
offences)
Sources od Crimes in Canada
 Only the federal Government has the power to enact criminal law in
Canada
o - s. 91 and s. 92 of the Constitution set out the powers of
Federal and Provincial governments
o - s. 91(27) – gives Federal government exclusive authority
over “criminal law”
o Provincial governments can regulate matters that fall within
their jurisdiction BUT
 s. 92(14) – gives the provincial legislature the authority over “the
administration of justice in the province” including the constitution,
maintenance and organization of criminal courts
 s. 92(15) – gives the provincial legislation the authority over the
imposition of punishment
o CREATES OVERLAP
Federal Criminal Legislation
 CRIMINAL CODE OF CANADA
o First enacted in 1892
o Amended from time to time
 CONTROLLED DRUGS AND SUBSTANCES ACT
o Contains all drug offences
o Enacted in 1996
o Divides different drugs into different “schedules”
o Replaced the Narcotics Control Act
 PLUS CASE LAW INTERPRETING LEGISLATION
Categories of Criminal Offences
 1. Summary conviction offence
o most minor offences
o examples: harassing phone calls (s.372(2)), carrying a
weapon to a public meeting (s. 89), possession of a small
amount of marijuana (CDSA, s. 4(5)), waterskiing at night (s.
250(2))
o Mostly 6 mothes
 2. Indictable offences
o most serious offences
o examples: murder (s. 229), cause explosion (s. 81),
importing/exporting weapons (s. 103(1)), trafficking
cocaine/oxycontin (CDSA, s. 5(3)(a))
 3. Hybrid offences
o majority of offences
o example: assault (s.266), sexual assault (s. 271), false fire
alarm (s. 437), promoting hatred (s. 319(2)), theft under
$5000 (s.334(b)), trafficking anabolic steroids (CDSA, s.
5(3)(c)) o hybrid – can go either way – can precede as summary
conviction or indictable
Limits on Criminal Law
 TWO main sources of restrictions on power to enact Criminal Law:
o 1. s. 91/s. 92 of the Constitution
 Parliament cannot make anything a crime
 Courts play a role in defining what sorts of things can
be crimes (as opposed to regulated some other way)
o 2. Canadian Charter of Rights and Freedoms
 Parliament cannot create a crime that violates any
provision of the Charter
Who decides if the law is within the limits?
 Judges decide whether criminal law is outside the scope of s.
91(27) or violates the Charter
 Judges strike down laws if the are ultra vires or violate the
Charter.
Section 91/ section 92 “TURF WAR”
 Margarine Reference Case (1949, SCC)
o FACTS: federal government made it an offence to make,
import or sell margarine in Canada if it was made with any fat
other than from milk or cream (Dairy Industry Ac)
o Penalty -- fine for a first offence or up to 6 months in jail
(with or without hard labour) for subsequent offences
o Legislation was challenged as ultra vires the Federal
Government [outside the scope of s. 91(27)]
o Government tried to defend it as valid criminal law
o SCC held that it was ultra vires the federal government (i.e.
not valid criminal law)
o - really a matter of “property and civil rights” which is a
provincial power [s. 92(13)]
o - in addition, the Court held:
o “A crime is an act which the law, with appropriate penal
sanctions, forbids; but as prohibitions are not enacted in a
vacuum, we can properly look for some evil or injurious or
undesirable effect upon the public against which the law
is directed.” o Margarine Reference – SCC continued:“Is the prohibition then
enacted with a view to a public purpose which can support it
as being in relation to criminal law? Public peace, order,
security, health, morality: these are the ordinary
though not exclusive ends served by that law, but they
do not appear to be the object of the parliamentary action
here. That object, as I must find it, is economic and the
legislative purpose, to give trade protection to the dairy
industry in the production and sale of butter; to benefit one
group of persons as against competitors in business in which,
in the absence of the legislation, the latter would be free to
engage in the provinces. To forbid manufacture and sale for
such an end is prima facie to deal directly with the civil rights
of individuals in relation to particular trade within the
provinces.”
 Bottom line:
o Criminal law is valid if it is aimed at some public evil in
respect of
o public peace
o order
o security
o health
o morality
o Criminal law is not valid if it is aim only at economic issues
(i.e. property rights)
Role of the judge
 Judges can interpret existing offences
 Judges can strike down legislation that is unconstitutional
 But Judges cannot create new offences
 s. 9(a) of the Criminal Code
 “No person shall be convicted...of an offence at common law”
 And Judges are bound by decisions of higher courts (common law
tradition)
 Frey v. Fedoruk (1950 – SCC)
o civil law suit
o had profound impact on criminal law o FACTS: Fedoruk caught Frey peeping in the window of his
house; Fedoruk chases Frey and “detains” him until the police
arrive
o “Peeping” was not an offence in the Criminal Code
o Frey is convicted at trial
o Conviction is set aside on appeal
o Frey sues Fedoruk for false imprisonment
o False imprisonment
 does not have to involve actual imprisonment
 only requires “restraint on freedom”
 to be “false”, it must be “unauthorized” or “wrongful”
o ISSUE: was Frey entitled to hold (“imprison”) Fedoruk until
the police arrived or what that “imprisonment” unauthorized?
o Criminal Code allows for a private citizen to arrest someone
without an arrest warrant when a criminal offence is being
committed (in limited circumstances)
o ISSUE: was Frey committing an offence? Where should we
look to decide what is an offence?
o Can judges create crime?
 No such thing as an offence “at common law” – that
produces “great uncertainty” in the administration of
criminal justice
 Should not leave it to judges to decide if some conduct
disturbs the tranquility of people or tends to provoke
violent retribution or is injurious to the public
 Nobody should be convicted of a crime unless it is a
provision in the Criminal Code
Post Script to Frey vs. Fedrouk
 In 1993, the Criminal Code was amended by the federal
government.
 264(1) No person shall, without lawful authority and knowing that
another person is harassed or recklessly as to whether the other
person is harassed, engage in conduct referred to in subsection (2)
that causes that other person reasonably, in all the circumstances,
to fear for their safety or the safety of anyone known to them.  (2) The conduct mentioned in subsection (1) consists of
o (a) repeatedly following from place to place the other person;
o (b) repeatedly communicating with the other person;
o (c) besetting or watching the dwelling-house, or place
where the other person resides, works, carries on business or
happens to be
o
September 26 : th
Recap from last week:
BIG IDEAS
• 1. Only the Federal government can enact criminal legislation – s.
91(27)
• 2. Criminal law in Canada is codified
• 3. Three types of offences in Canada: summary, indictable and hybrid
• 4. Not all penal legislation enacted by the Federal government is valid
(Margarine Reference)
CRIME = prohibited act + penalty + proper criminal law purpose (peace,
order, security, health, morality)
CHARTER limits on Criminal Law
• RULE: Parliament is not entitled to enact criminal law that constitutes
an unjustified violation of one of the rights guaranteed in the Charter
• NOT ALL CHARTER VIOLATIONS MAKE A LAW UNCONSTITUTIONAL
• ISSUE: is the violation “unjustified” or “justified”?
Starting point:
• Section 52(1) of the Constitution:
• The Constitution is the supreme law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the extent of
the inconsistency, of no force and effect
• If law is inconsistent “of no force and effect”
• Can not be applied. Has no legal force in Canada
• Only to the extent that the legislation violates the charter
• Already talked about how a law can be inconsistent with ss. 91/92
(division of power)
• Now going to look at how it can be inconsistent with the Charter Canadian Charter of Rights and Freedoms
• Part I of the Constitution Act, 1982
• Forms part of the Constitution
• s. 52(1) applies to Charter violations
• any law that is inconsistent with the Charter is “of no force and effect”
to the extent of the inconsistency
• some rights limit criminal procedure
• Some rights limit substantive criminal law (ie what can be a
criminalized)
Charter rights:
PROCEDURAL RIGHTS – ss. 8 to 14
• Section 8 – Everyone has the right to be secure against unreasonable
search or seizure
 Only applies to state
 Does not say that they can never search and seize something from
you, says that they can‟t only if its unreasonable
• Section 10(b) – Everyone has the right on arrest or detention to retain
and instruct counsel without delay and to be informed of that right.
• Section11(d) – Any person charged with an offence has the right to be
presumed innocent until proven guilty according to law in a fair and
public hearing by an independent and impartial tribunal.
SUBSTANTIVE RIGHTS
• Section 2 –Everyone has the following fundamental freedoms:
 (a) freedom of conscience and religion;
 (b) freedom of thought, belief, opinion and expression, including
freedom of the press and other media communication;
o cornerstone of a democratic society
Charter Rights:
• Section 15(1) – Every individual is equal before and under the law and
has the right to the equal protection and equal benefit of the law
without discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
• Protects both procedural and substantive rights
Section7: • Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the
principles of fundamental justice.
Guarantees 3 rights:
• (1) life;
• (2) liberty; and
• right to go about your business without state interference
• most important because all criminal law has to be a prohibited
plus a penal consequence or the possibility one. Penal
consequence is the risk that you will be imprisoned and going to
jail is a restriction on your liberty rights
• ALL CRIMINAL LAW ENGAGE SECTION7 OF THE CHARTER
• (3) security of the person
• protection over your own physical and mental integrity
• ex. Right to not be deprived medical care
• Protects both procedural and substantive rights
Charter rights:
• Law will violate s. 7 only if it
• (a) infringes one of 3 rights AND (life, liberty, security)
• In criminal law the answer to this is always going to be yes
• (b) is inconsistent with the “principles of fundamental justice”
• if it conforms with the principles of fundamental justice it does
not violate section 7 of the charter
• Any criminal offence carries the potential of incarceration or some
other punishment that will constitute a deprivation of liberty.
• All criminal offences must, therefore, conform to the “principles of
fundamental justice” or they will violate s. 7
“Principles of Fundamental Justice:
• R. v. Heywood (1994, SCC)
• FACTS:
• Heywood was convicted of a sexual assault involving children
• As part of his penalty for that offence, he was subject to s. 179(b) of
the Criminal Code:
• Everyone who has been convicted of a sexual offence commits an
offence (vagrancy) who “is found loitering in or near a school ground,
playground, public park or bathing area” • On two occasions, he was stopped by the police in a park
• First time he was cautioned; second time arrested
• Challenged legislation as inconsistent with s. 7 of the Charter on two
grounds:
• (1) Offence limits where people can go = restriction on liberty
• (2) carries the potential for imprisonment = potential restriction
on liberty interest
• QUESTION – does it restrict the accused‟s liberty in a manner that is
inconsistent with the principles of fundamental justice?
• Always infringes section 7 (liberty) yet is inconsistent with the
principles of fundamental justice?
R. v. Heywood – SCC decision
 no defined set of “principles of fundamental justice”
 found in the “basic tenants of our legal system” – found in the
common law
o there are common law principles of fundamental justice
o judge can create new principles of fundamental justice at any
time
 BUT not all common law rules are principles of fundamental justice
 MUST BE:
o Legal principles
 You can not articulate a social policy and try to make it
a principle fundamental justice
o Fundamental to fair operation of our legal system
 You have to show that the principle is so fundamental
that if they don‟t accept the principle of fundamental
justice, the system will be unfair
o Identified with precision
 In one sentence or less articulate what the principle is
 No vague ideas
 R. v. Heywood
 SCC identified 3 principles of fundamental justice:
 1. criminal law must not be overbroad – are the means chosen are
“grossly disproportionate” to the objective?
o Because criminal law carries with it significant implications o So we don‟t want the federal government to be able to enact
that really should capture 10 people yet has to apply to 5000
people
o Only has to be targeted at the crime you are trying to reduce
o Ex. Federal government wants to criminalize child porn, it is a
valid criminal law purpose. They can not however that in
order to get at that specific harm, they can not criminalize
any form of media that involved nudity  it is way too far
beyond what is necessary
o Tailor the offence to the harm they are trying to prevent
 2. notice must be given of criminal offences
o need for people to have notice
o you can not be convicted of an offence if you don‟t have
notice that it is a crime
o There has to be some sufficient notice to everybody that
something is an offence
 3. criminal law must not be vague – are the provisions incapable
of meaningful interpretation by the Court?
o Vague – a law will only be vague if it incapable of meaningful
interpretation by the court
o Only unconstitutional if the court looks at it and cannot
comprehend
RV Heywood; struck the law down because it was too broad (no necessary
connection to children – maybe there are no kids there? Does not capture
the legitimate concern) and problem with the notice. Court said that a
warning from a police officer does not count as notice. Reenacted it. It is
now narrower.
R. v. Clay; R. v. Malmo-Levine (2003, SCC)
FACTS:
 Malmo-Levine operated a “harm reduction club” that was raided by
police; seized 316 gm of marijuana
 Clay ran “The Great Hemp Emporium”; arrested after he sold a
small seedling to an undercover officer
 ISSUE: does criminalizing possession of marijuana for personal use
violates s. 7?  risk of imprisonment = infringement of liberty interests
 BUT...does it do so in a way that is inconsistent with the principles
of fundamental justice?
 Proposed 2 principles of fundamental justice:
 (a) criminal law cannot be arbitrary
o if it bears no relation to or is inconsistent with its objective
 (b) criminal law must be aimed at protecting against harm to others
– protecting against self-harm is not a valid criminal law purpose
o SCC agreed with (a) but rejected (b)
 Said federal government is perfectly entitled under
peace, security, health, or morality, to protect people
against harm against themselves under criminal law
 Protecting your health is a valid criminal law purpose
Principles of Criminal Justice
“Harm principle”
 No consensus in respect of the harm principle
 No consensus that only “harm to others” is a basis for criminal law
 Harm to self is a legitimate basis; so is moral harm
Arbitrariness
 Criminal law cannot be arbitrary
 Law will be arbitrary if it bears no relation to, or is inconsistent
with, its objective
 Possession offence is not arbitrary
 Sufficient state interest in preventing harm to justify criminalization
Charter Rights:
Charter rights are not absolute
Section 33(1) – Parliament...may expressly declare in an Act of
Parliament...that the Act or a provision thereof shall operate notwithstanding
a provision included in section 2 or section 7 to 15 of this Charter.
 If parliament says they are enacting provisions notwithstanding a
particular section. It means they know that a provision violates a
charter provision  valid so long as they say they are intentionally
violating charter rights  not subject to charter challenge
 Any provision that is enacted under s.33 is only valid for 5 years –
after 5 years it has to be reenacted  Notwithstanding clause
(3) A declaration made under subsection (1) shall cease to have effect
five years after it comes into force…
Section 1 – The Canadian Charter of Rights and Freedoms guarantees
the rights and freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic
society.
 You only have the rights in the charter to the extent that limits to
them are not reasonable
Laws are only unconstitutional if:
 (a) they infringe a right or freedom guaranteed in the Charter (2
part test under s. 7); AND
o people challenging the legislation have to prove that there is
an infringement
 (b) the infringement cannot be justified in a free and democratic
society under s. 1
o the government has to establish
BURDEN OF PRO